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Jurisdiction: California Central District Court
Decision Date: 12/11/2015

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Branham v. Colvin Branham v. Colvin (C.D. Cal., 2015)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        BRANDY B. BRANHAM, Plaintiff,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Case No. ED CV 15-00050-DFM

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        December 11, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        BRANDY B. BRANHAM, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Case No. ED CV 15-00050-DFM

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        December 11, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MEMORANDUM OPINION AND ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff Brandy B. Branham ("Plaintiff") appeals from the final decision of the Administrative Law Judge ("ALJ") denying her application for Supplemental Security Income benefits. The Court concludes that the ALJ gave clear and convincing reasons which were supported by substantial evidence in the record for discrediting Plaintiff's subjective symptom testimony. The ALJ's decision is therefore affirmed and the matter is dismissed with prejudice.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        I.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        FACTUAL AND PROCEDURAL BACKGROUND

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff filed her application for benefits on November 28, 2011, alleging disability beginning July 1, 1998. Administrative Record ("AR") 149-54. The

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ALJ found that Plaintiff had the severe impairments of "Arnold Chiari malformation type II; headaches; occipital neuralgia; C5-C7 disc bulge; obesity; and disc bulge at L3-L5 with spinal stenosis. " AR 22. The ALJ concluded that Plaintiff was not disabled because there was work available in significant numbers in the national and regional economy which she could perform despite her impairments. AR 29-31.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        II.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ISSUE PRESENTED

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The parties dispute whether the ALJ erred in failing to properly assess Plaintiff's credibility. See Joint Stipulation ("JS") at 4.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        III.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISCUSSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff testified at the administrative hearing that she suffered from headaches, whole body pain, and low back pain on a daily basis; her pain level was 8 or 9 out of 10, even with medication; she stayed in bed most of the day; she had blurred vision and difficulty hearing; she could only stand for five minutes at a time, sit for ten minutes, and walk for less than ten minutes; she needed to lie down or she would get dizzy and lose her balance; she had anxiety; and she had difficulty concentrating and focusing. AR 42-60.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                To determine whether a claimant's testimony about subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. Vasquez v. Astrue 572 F. 3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue 504 F. 3d 1028, 1035-36 (9th Cir. 2007)). First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the alleged pain or other symptoms. Lingenfelter 504 F. 3d at 1036 (citing Bunnell v. Sullivan 947 F.2d 341 343 (9th Cir. 1991) (en banc)). Once the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence. Bunnell 947 F.2d at 343 (citation omitted). To the extent that an individual's claims of functional limitations and restrictions due to alleged symptoms are reasonably consistent with the objective medical evidence and other evidence, the claimant's allegations will be credited. Social Security Ruling ("SSR") 96-7p, 1996 WL 374186, at *2 (July 2, 1996) (explaining 20 C. F. R. 416. 929(c)(4)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                If the claimant meets the first step and there is no affirmative evidence of malingering, the ALJ must provide specific, clear and convincing reasons for discrediting a claimant's complaints. Robbins v. Soc. Sec. Admin. 466 F. 3d 880, 883 (9th Cir. 2006) (citing Smolen v. Chater 80 F. 3d 1273, 1283-84 (9th Cir. 1996)). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints. " Reddick v. Chater 157 F. 3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater 81 F. 3d 821, 834 (9th Cir. 1995)). The ALJ must consider a claimant's work record, observations of medical providers and third parties with knowledge of claimant's limitations, aggravating factors, functional restrictions caused by symptoms, effects of medication, and the claimant's daily activities. Smolen 80 F. 3d at 1284 & n. 8. Additionally, "in weighing a claimant's credibility, the ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains. " Light v. Soc. Sec. Admin. 119 F. 3d 789, 792 (9th Cir. 1997) (citations omitted). The ALJ may also consider an unexplained failure to seek treatment or follow a prescribed course of treatment and employ other ordinary techniques of credibility evaluation. Smolen 80 F. 3d at 1284.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ gave several clear and convincing reasons for finding that Plaintiff's subjective testimony was not entirely credible, each of which is supported by the record. First, the ALJ properly considered Plaintiff's activities of daily living in assessing her credibility. The ALJ noted that, despite Plaintiff's complaints of debilitating pain, she was able to perform certain daily activities, such as using a computer, attending church on many Sundays, shopping, riding in a car, cooking occasionally, and taking care of her own personal care. AR 26. Although a claimant "does not need to be 'utterly incapacitated' in order to be disabled, " Vertigan v. Halter 260 F. 3d 1044, 1050 (9th Cir. 2001) (quoting Fair v. Bowen 885 F.2d 597, 603 (9th Cir. 1989)), the ability to perform certain activities of daily life can support a finding that the claimant's reports of his or her impairment are not fully credible, see Bray v. Comm'r of Soc. Sec. Admin. 554 F. 3d 1219, 1227 (9th Cir. 2009); Curry v. Sullivan 925 F.2d 1127 1130 (9th Cir. 1991) (as amended) (finding that the claimant's ability to "take care of her personal needs, prepare easy meals, do light housework and shop for some groceries . . . may be seen as inconsistent with the presence of a condition which would preclude all work activity" (citing Fair, 885 F.2d at 604)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Second, the ALJ noted that, despite her complaints of debilitating pain, Plaintiff's treatment history was generally conservative. The ALJ pointed out that "treatment records reveal the claimant received routine, conservative, and non-emergency treatment since the alleged onset date, " and that there was no evidence of a more aggressive treatment or "surgical intervention. " AR 26-27. A conservative treatment history is a legitimate basis for an ALJ to discount a claimant's credibility. See Tommasetti v. Astrue 533 F. 3d 1035, 1039 (9th Cir. 2008); see also Fair 885 F.2d at 604 (finding that the claimant's allegations of persistent, severe pain and discomfort were belied by "minimal conservative treatment").

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Third, the ALJ cited Plaintiff's poor work history as a reason for finding her less than fully credible, noting that Plaintiff testified that she had never worked or looked for any work, which "raised some questions as to whether the current unemployment is truly the result of medical problems. " AR 25, 27. The ALJ was permitted to rely on Plaintiff's work history in assessing her credibility. See 20 C. F. R. 416. 929(c)(3) (in evaluating the intensity and persistence of a claimant's symptoms, the fact finder "will consider all of the evidence presented, including information about the claimant's prior work record"); see also Thomas v. Barnhart 278 F. 3d 947, 959 (9th Cir. 2002) (holding that the ALJ properly determined that claimant was not credible where the claimant "had an 'extremely poor work history' and 'had shown little propensity to work in her lifetime'").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Fourth, the ALJ extensively reviewed the medical evidence and reasonably determined that it did not support Plaintiff's alleged symptoms and limitations. AR 27-29. Although a lack of objective medical evidence may not be the sole reason for discounting a claimant's credibility, it is nonetheless a legitimate and relevant factor to be considered. See Rollins v. Massanari 261 F. 3d 853, 857 (9th Cir. 2001).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Finally, the ALJ noted that, although Plaintiff alleged that she could only stand, walk, and sit for ten minutes, she sat through a fifty-minute hearing without any problem. AR 27. The ALJ also observed that Plaintiff was able to "get up from her seat without effort" and "walk out of the hearing room with a good gait, " despite her claims that, after sitting, she must stand slowly due to back pain. Id. Plaintiff argues that this reason is "the type of 'sit and squirm' jurisprudence" that the Ninth Circuit has disfavored. JS at 15-16 (citing, inter alia Perminter v. Heckler 765 F.2d 870 872 (9th Cir. 1985)). Although this Circuit has held that it is not permissible for the ALJ to rely solely on the claimant's appearance at the hearing, the "inclusion of the ALJ's personal

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 6

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        observations does not render the decision improper. " Verduzco v. Apfel 188 F. 3d 1087, 1090 (9th Cir. 1999); citing Morgan v. Comm'r of Soc. Sec. Admin. 169 F. 3d 595, 600 (9th Cir. 1999). Here, the ALJ did not observe behavior consistent with Plaintiff's complaints; for example, she said she could not sit for more than ten minutes but apparently sat throughout a 50-minute hearing. Moreover, this is not a case where the ALJ based his decision that Plaintiff is capable of working solely on observations made at the hearing; to the contrary, the ALJ's observations were but one of several factors used to discount Plaintiff's testimony.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On appellate review, the Court does not reweigh the hearing evidence regarding Plaintiff's credibility. Rather, this Court is limited to determining whether the ALJ properly identified clear and convincing reasons for discrediting Plaintiff's credibility, which the ALJ did in this case. Smolen 80 F. 3d at 1284. It is the ALJ's responsibility to determine credibility and resolve conflicts or ambiguities in the evidence. Magallanes v. Bowen 881 F.2d 747, 750 (9th Cir. 1989). If the ALJ's findings are supported by substantial evidence, as here, this Court may not engage in second-guessing. See Thomas 278 F. 3d at 959 (citing Morgan 169 F. 3d at 600); Fair, 885 F.2d at 604. It was reasonable for the ALJ to rely on all of the reasons stated above, each of which is fully supported by the record, in rejecting Plaintiff's subjective testimony. Reversal is therefore not warranted on this basis.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        IV.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CONCLUSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dated: December 11, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        DOUGLAS F. McCORMICK        United States Magistrate Judge

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Bunnell v. Sullivan, 947 F.2d 341 (C.A.9 (Wash.), 1991)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1991-10-01 Citations: 40
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Fair v. Bowen, 885 F.2d 597 (9th Cir., 1989)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1989-09-13 Citations: 19
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Perminter v. Heckler, 765 F.2d 870 (C.A.9 (Cal.), 1985)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1985-07-09 Citations: 4
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Magallanes v. Bowen, 881 F.2d 747 (9th Cir., 1989)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1989-08-04 Citations: 27
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes

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